Back in March we wrote about the group of former unpaid interns from Gawker Media’s Manhattan office suing to recover back pay under the federal Fair Labor Standards Act (FLSA), and their desire to use social media to encourage plaintiffs to opt-in. After the Court ultimately denied their request, the plaintiffs submitted yet another plan to the court to use social media to notify potential class members of the action.
In an attempt to address the overbreadth problem that resulted in the denial of their request the previous month, plaintiffs proffered a more focused agenda to target interns eligible to “opt-in.” Plaintiffs assert that they are unable to locate email or mailing addresses of the 55 known former Gawker interns, but 27 of them are known to have a Facebook or Twitter account and 16 have a LinkedIn account. Plaintiffs asked to “follow” the former interns on Twitter, “friend” on Facebook, and “connect” on LinkedIn to allow them to send direct, private messages to the former interns regarding the class. Plaintiffs similarly asked permission to email notices to certain individuals who applied for internships with Gawker Media, but not necessarily hired, blaming Gawker for its failure to keep accurate records of names and contact information of the interns.
Not surprisingly, defendant Gawker objected to two main aspects of the revised plan claiming that the class plaintiffs failed to identify any effort “to correlate application emails with the emails to and from actual interns that also have been produced” by Gawker. Gawker insisted that plaintiffs’ proposed plan was inherently overbroad and likely to solicit individuals having no interest in the litigation.
On April 10, 2015, the Court split the baby. The Court granted plaintiffs’ renewed and revised application for it to disseminate notice of the action via social media, subject to the “prudent limitations” expressed by Gawker. (Apr. 10, 2015 Order, Dkt. 125.) Pursuant to the order, plaintiffs are able to publish notice to former Gawker interns as requested, but are denied the ability to reach out to internship applicants who never actually became Gawker interns. The Court commented that notice should only be sent to those who can raise a claim—thus, if never a Gawker intern, then no claim under FLSA exists in this action.
Further, the opt-in period for the class is set to close on April 14, 2015. Plaintiffs were ordered to “unfollow” any interns on Twitter, unless the individual chose to opt-in to the class. Next, plaintiffs are prohibited from sending friend requests to individuals on Facebook, to avoid the “misleading impression” of the individual’s relationship with Plaintiffs’ counsel. The Court remarked that the revised plan ensured Plaintiffs’ use of social-media notice complied with the general principle governing FLSA opt-in notices. (Dkt. 125 at 2.)
The Court recognizes the convenience and allure of social media in the context of notifying class members, but any attempt to publish “notice” via social media must be narrowly tailored to ensure that actual interested parties are notified. Any plan beyond informing eligible plaintiffs to opt-in to a collective action, will likely receive intense scrutiny by a Court.